| Knight v Realty USA.COM, Inc. |
| 2012 NY Slip Op 04539 [96 AD3d 1443] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| Mary J. Knight, Respondent, v Realty USA.COM, Inc., et al.,Appellants, et al., Defendants. |
—[*1] John J. Delmonte, Niagara Falls, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Catherine R. NugentPanepinto, J.), entered October 25, 2011 in a personal injury action. The order, insofar asappealed from, denied the motion of defendants Realty USA.com, Inc. and Dianne Shaw, RealtyUSA for summary judgment dismissing plaintiff's complaint against them and granted plaintiff'scross motion for leave to amend the summons and complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion of defendants-appellants is granted, the complaint against them isdismissed, and the cross motion of plaintiff is denied.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen, during an open house at a home owned by defendants Frank Robertaccio and KathleenRobertaccio, she tripped and fell over a platform located in the basement. The Robertaccios hadhired defendant Realty USA.com, Inc. and defendant Dianne Shaw, Realty USA, a real estateagent (collectively, defendant brokers) to sell their home. Shaw arranged the open house with thehelp of her assistant, and it was administered by a hostess employed by Shaw. Neither theRobertaccios nor Shaw were present during the open house.
As limited by their brief, defendant brokers contend that Supreme Court erred in denyingtheir motion for summary judgment dismissing the complaint against them and in grantingplaintiff's cross motion for leave to amend the summons and complaint. We agree. With respectto the motion for summary judgment, it is well settled that" '[l]iability for a dangerous condition on property is predicated upon occupancy, ownership,control or a special use of [the] premises' " (Clifford v Woodlawn Volunteer Fire Co., Inc., 31 AD3d 1102,1103 [2006]). " 'The existence of one or more of these elements is sufficient to give rise to a dutyof care[, but w]here none is present, a party cannot be held liable for injury caused by thedefective or dangerous condition of the property' " (id.). Defendant brokers, whose onlyconnection to the property was [*2]listing it for sale and showingit to prospective buyers, met their initial burden on their motion by establishing that they did notoccupy, own, or control the Robertaccios' home and did not employ it for a special use, and thusdid not owe plaintiff a duty of care (seeRackowski v Realty USA, 82 AD3d 1475, 1476 [2011]; Eichelbaum v Douglas Elliman, LLC,52 AD3d 210 [2008]). In response thereto, plaintiff failed to raise a triable issue of fact(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary toplaintiff's contentions, the evidence does not establish that Shaw assumed a duty to repair theplatform or to warn others about it (see generally Gauthier v Super Hair, 306 AD2d 850,851-852 [2003]), nor does it establish that defendants may be liable under a "special use" theoryof liability (see generally Kaufman v Silver, 90 NY2d 204, 207 [1997]).
We further conclude that the court erred in granting plaintiff's cross motion for leave toamend her summons and complaint to raise additional causes of action sounding in "generalnegligence" and to add Shaw's employee who hosted the open house as a defendant (seegenerally CPLR 3025 [b]). As previously noted, defendants established that they did not oweplaintiff a duty of care with respect to any defective or dangerous conditions on the premises, andthat principle applies equally to plaintiff's proposed causes of action, which likewise are based innegligence. It also applies equally to Shaw's employee, whose sole connection to the premiseswas hosting the open house, allowing plaintiff entry into the home, and showing her where toaccess the basement (see Rackowski, 82 AD3d at 1476; Eichelbaum, 52 AD3d210). Inasmuch as the proposed amendments were "patently lacking in merit" (Letterman vReddington, 278 AD2d 868 [2000]; see Nastasi v Span, Inc., 8 AD3d 1011, 1013 [2004]), the courterred in granting plaintiff's cross motion for leave to amend her summons and complaint (cf. McFarland v Michel, 2 AD3d1297, 1300 [2003]; see generallyC-Kitchens Assoc., Inc. v Travelers Ins. Cos. [Travelers Ins. Co.], 15 AD3d 905, 907[2005]; Boccio v Aspin Trucking Corp., 93 AD2d 983, 983 [1983]).Present—Smith, J.P., Fahey, Peradotto, Sconiers and Martoche, JJ.